Tuesday, December 21, 2004

Whereas the City of Heroes dispute involves a company making a product that consumers can use to emulate trademarked characters, iPod My Photo seems a lot more straightforward from the trademark perspective: the company transforms a consumer's picture into something that looks like an iPod ad. See larger samples here. The company is, for profit, emulating the distinctive iPod ads, including the image of the iPod (though a consumer can say "no," the default is "draw the subject(s) wearing an iPod"). Seems like something that might cause post-sale confusion about whether Apple authorized the images -- and it seems like something Apple might want to monetize itself, if it's so darn popular that people will pay to advertise not just the iPod, but the ad style itself.

It's almost incidental that the site uses "iPod" as a verb, which is supposedly a trademark no-no. In the past, using a trademark as a verb might have helped slide it into genericity, but in these IP-savvy days I doubt it makes any difference. We all know that "Xerox" and "Google" are trademarks, even as we instruct others to xerox and google in appropriate contexts. (The verbs "iPod," "xerox," and "google" are examples of zero derivation, in which a word is made to play a different part of speech without any suffix or other marker such as "-ize." English, that most flexible of languages, never ceases to amaze me with its adaptability.)

That being said, the site's pretty cool; I wouldn't turn down an iPodized picture of myself, or maybe my cat -- the cat sample picture looks good.

Wednesday, December 08, 2004

I got myself in some hot water last year when I referred students to an Onion article about a successful trademark suit filed by a tanning salon against Tanzania, which ended with a preliminary injunction against the nation's use of its name. Several of my foreign students -- rationally enough, really, given how wacky US law can be -- thought it might be true because I didn't explain that the Onion is parody. The story is now pay-only on the Onion's site, but a blog report -- including some comments that took the "news" seriously -- can be found here.

Monday, December 06, 2004

Not what you want as a response to your threat letter: FairTest, an organization that often challenges reliance on SAT scores in education, received a threat letter from the College Board, which runs the SATs, claiming that the scores posted on FairTest's site infringed the College Board's copyright. FairTest responded. Making claims on behalf of rival ACT might be one of the most interesting instances of overreaching I've seen in a while.

What's sad is that the claim that a score -- a single number, or even a series of them -- is protected by copyright is not generally ludicrous, though in this case I think it is. But some cases have held that prices are "compilations" and thus protected by copyright. If a number is produced by the exercise of skill and judgment -- determining, for example, how to aggregate cars to determine an average price for a certain make and model in a certain geographic area -- then a claim of copyrightability passes the laugh test, even though copyright isn't supposed to exist for words and short phrases. I suspect the College Board is prepared to argue that, like prices, its categories (scores by race, gender, family income) are produced not mechanically but by making decisions -- about, for example, how to define "race" ("multiracial" is an option, as is "other," as is "prefer not to respond," as is no "response") and where to break income levels ($18,000 or $20,000?) -- and therefore the resulting numbers are the product of the College Board's creative judgment.

I'd be inclined to call these numbers unprotectable "facts." Though the fact/expression line is a tricky one, these are not particularly creative decisions even though they could have been made in other ways, and in any event, given the public policy interests at stake, there's not much point in finding the scores copyrightable when I can hardly imagine an unauthorized use that I wouldn't find to be fair.

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